Following up on its March 26, 2020 guidance relating to enforcement and compliance assurance, on April 10, 2020, the United States Environmental Protection Agency (“EPA”) issued additional interim guidance relating to site cleanups under Superfund, RCRA, and other federal cleanup programs. To ensure consistent management of cleanups across the country in response to the evolving COVID-19 situation, EPA issued “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” to all EPA Regional Administrators (“Cleanup Guidance”). Rather than a blanket decision to continue, reduce or pause field work at all cleanup sites, EPA’s guidance to Regional Administrators is to evaluate appropriate action on a case-by-case basis based on a number of factors described below.
The Cleanup Guidance applies to “response actions related to cleanup and emergency responses sites where EPA is the lead agency or has direct oversight of or work responsibility for the work being performed.” This includes cleanups under a broad swath of EPA authorities, including but not limited to, the Superfund program, RCRA corrective action, TSCA PCB cleanup provisions, the Oil Pollution Act, and the Underground Storage Tank program. EPA states that its intent in issuing the guidance is that it would apply to response action work regardless of the party conducting the work -- EPA, states, tribes other federal agencies, potentially responsible parties (“PRPs”), etc. EPA also encourages each Region to share this guidance with the states to employ it as necessary in state-lead RCRA cleanups.
Importantly, private parties that believe that state and local COVID-19 restrictions may impact their ability to perform in accordance with the applicable enforcement instrument are encouraged to utilize provisions that allow for adjustments to schedules or force majeure provisions. EPA notes that modifications to a party’s performance obligations will be made on a case-by-case basis. Regular and open communication with EPA will be increasingly important as the situation evolves over the coming weeks and months.
EPA lays out a number of factors that will be considered on a site-specific basis to determine whether a response action should continue, be reduced, or paused, including the following:
- State, tribal, or local health officials have requested particular site operations or types of operations be suspended;
- Site workers have tested positive for or exhibited symptoms of COVID-19;
- Sites where there may be close interaction with high risk groups or those under quarantine, such as work inside homes;
- Sites where contractor field personnel are not able to work due to state, tribal, or local travel restrictions or medical quarantine; and
- Sites where social distancing is not possible.
Of course, each cleanup site has its own unique set of variables that will affect EPA’s ability to reduce or pause work. For example, where failure to continue response actions would pose an imminent and substantial endangerment to human health or the environment, including, but not limited to, the following scenarios:
- EPA or responsible parties providing alternative water supplies (e.g., bottled water, Point of Entry Systems (POET Systems), replacement filters, etc.) to individuals who otherwise would be exposed to or consume contaminated drinking water;
- Response actions to prevent a catastrophic event (e.g., mine blow outs, sites with high probability of fire or explosion, etc.);
- Response actions to prevent contaminated groundwater plume expansion that is reasonably likely to adversely affect drinking water sources (private or public), including continued operation of groundwater pump and treat systems;
- Response actions to prevent releases to waterbodies that are reasonably likely to adversely affect drinking water intakes or communities downstream, including treatment of acid mine drainage;
- Disposal of materials off-site (e.g., mine waste, chat, unsafe cylinders) that create an imminent safety issue if not promptly removed;
- Assessment of potential or actual vapor intrusion, especially into structures with sensitive populations; and
- Complete, continue, or take measures to stabilize in-process response actions to ensure unacceptable releases to the environment do not occur (e.g., deactivation and decommissioning of a former nuclear facility, soil excavation, partial closure of a landfill disposal cell).
EPA is careful to emphasize that non-field work (i.e., investigation reports, modeling, negotiation, workplans, progress reports, etc.) should continue to the extent possible. However, EPA also acknowledges that non-field work may not be possible in some situations due to the impact on supporting operations, including laboratories.
For further information, see EPA’s interim Cleanup Guidance here.
The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.